Smith v. State , 1994 Ind. App. LEXIS 1712 ( 1994 )

OPINION

FRIEDLANDER, Judge.

Terry Smith was convicted of Burglary¹ and Attempted Rape,² both class A felonies, after pleading guilty, and appeals the denial of his petition for post-conviction relief. Smith presents the following restated issues for review:

I. Were Smith's convictions a nullity because of a master commissioner's participation in the proceedings?

II. Were Smith's guilty pleas invalid because defense counsel misinformed Smith of the sentence he would receive?

We affirm.

The facts favorable to the judgment are that on October 9, 1984, Smith broke into the apartment of Richard and Debra Carvalho, intending to rape Debra. When the Carval-hos returned home, Smith ordered the couple into the bedroom at gunpoint and ordered Debra to disrobe. As Smith started to disrobe, he laid the gun on the bed and a brief struggle ensued. Richard was able to gain control of the gun and Smith fled from the apartment. Smith was apprehended by police a short time later and was positively identified by the Carvalhos. Smith later pled guilty to burglary and attempted rape.

The December 14, 1984 guilty plea hearing was conducted by Jay Haggarty, acting as master commissioner. Haggarty took the plea under advisement and set the matter for sentencing. The sentencing hearing was held on January 10, 1985 and was conducted by Master Commissioner Haggarty. Hag-garty accepted the guilty plea and imposed sentence as follows:

"I think the aggravating cireumstances outweigh the mitigating cireumstances and on that basis from the thirty[-]lyear presumptive sentence the Court adds twenty years on Count One [burglary]-for fifty years. On Count Two the Court onee again finds aggravating cireumstances outweigh the mitigating circumstances, ...

and on that basis the thirty[-lyear presumptive sentence-twenty years will be added. Fifty years on each count to run concurrently...." Record at 197.

I.

Smith contends that his convictions are invalid because a master commissioner presided over the guilty plea and sentencing hearings. It is undisputed that Haggarty did not have authority under statutes then in effect to preside over the proceedings and enter judgment. We conclude, however, that Smith has waived the error by presenting this issue for the first time on appeal.

In Short v. State (1982), Ind., 443 N.E.2d 298, the defendant was found guilty following a jury trial and subsequently was sentenced. A master commissioner presided over both phases of the proceedings. Upon appeal, the defendant claimed that the proceedings were a nullity because the record did not contain a valid appointment for the master commissioner. The defendant did not object to the master commissioner's authority, however, until commencing the appeal. Our Supreme Court determined that the issue was waived, stating:

"[T lhe appellant's objection is not that the court lacked subject matter jurisdiction to hear the case, but rather that the presiding authority in the court had no authority to so act. [In Gordy v. State (1974), 262 Ind. 275, 315 N.E.2d 362, a similar case, we held] as follows:

'Even if the Commissioner's authority was improper in this case ..., Defendant's conviction may not be set aside. The Commissioner did not merely usurp this authority and set up a mock court. He heard the case in the Lake Criminal Court, which clearly had jurisdiction over the subject matter as well as over the person of the Defendant. The Commissioner was acting as a judge, a duty he clearly may assume under statute if his appointment is procedurally correct. Both parties submitted to his authority as a judge and neither questioned this authority until this appeal was initiated. Thus, he was operating under color of authority, and served as judge de facto if not as a judge de jure. His authority as a judge de facto may not be raised on appeal for the first time. ~

This reasoning is applicable in the case at bar. Appellant tendered no objection to the authority of the Master Commissioner in this case to perform the functions of the trial judge until initiation of this appeal; hence any claim of error based on allegedly improper assumption of authority is waived." Short, supra, 443 N.E.2d at 309-10.

As in Short, Smith was represented by counsel and submitted to the hearing before Master Commissioner Haggarty without objecting to Haggarty's authority. In so doing, Smith waived the issue of whether Haggarty's participation rendered the proceedings a nullity. Short, supra; see also Morlan v. State (1986), Ind., 491 N.E.2d 1001.

II.

Smith claimed that he was misinformed by his trial counsel that by pleading guilty, Smith would receive a sentence of between 20 and 80 years. He claimed that he would not have pled guilty if had he known he was eligible to receive a 50-year sentence.

In order to prevail in a post-convietion challenge based upon an allegedly invalid guilty plea, a defendant must demonstrate grounds for reversal by a preponderance of the evidence. Allen v. State (1986), Ind., 498 N.E.2d 1214. A defendant must demonstrate specific facts which lead this court unerringly and unmistakably to a conclusion opposite that of the trial court. Joseph v. State (1985), Ind., 483 N.E.2d 32. In the instant case, Smith must first prove by a preponderance of the evidence that his counsel erroneously advised him of the sentencing range.

In support of his argument that he was misinformed by counsel, Smith offers only his own self-serving assertion that "Had he known that [he] could have received more than 30 years after listening to Mr. Conway," he would not have entered the guilty plea. Record at 218-14. Even accepting the dubious proposition that this statement is evidence that he was misinformed, the record is replete with evidence to the contrary.

Michael Conway, Smith's counsel at the guilty plea hearing, testified at the post-conviction hearing. Conway recalled that he had discussed with Smith the possible range of the sentence Smith might receive if he pled guilty:

"We then talked in terms of a plea, and while I presented to him the ranges of sentences involved, which I think was 20 to 50; we discussed also, and he asked me what I thought he might end up with, as a 'gut reaction'. And, I had told him that based upon his criminal history, and my experience, that I thought he was reasonably looking in the 20 to 30 year range; but, that final decision was the Court's, and the Court's alone. And he could receive anything from 20 to 50." Record at 287.

Conway's testimony refutes Smith's contention that he was not informed that a 50-year sentence was possible. Smith's claim is contradicted elsewhere in the transcript of the guilty plea hearing:

"THE COURT: All right, the minimum sentence is twenty (20) years, the maximum sentence is fifty (50) years, the presumptive sentence is thirty (80) years. If you have a prior criminal history, that would be one (1) of the criteria that the Court would aggravate the circumstances and make it a fifty (50) year sentence. Do you understand that?

MR. SMITH: Yes, sir.

THE COURT: Now, you're charged in two counts. Do you know what consecutive means?

MR. SMITH: Yes, sir, Your Honor.

THE COURT: All right, that means that the Court could stack one sentence on top of the other. And if it was a maximum sentence on each charge, it could be a hundred (100) years. Do you understand that?

MR. SMITH: Yes, sir.

THE COURT: Do you understand everything I've explained to you so far here today?

MR. SMITH: Yes, sir, Your Honor.

THE COURT: And you still want to plead guilty to Counts One (1) and Two (2) of the Information, both class A felonies.

MR. SMITH: Yes, sit, Your Honor." Record at 178-74.

Smith's claim of ignorance of the possibility of a 50-year sentence is further controverted by his own testimony at the post-conviction hearing:

"Q. Mr. Smith, as I understood you to say that you remembered that the Judge did tell you the range of penalties was as high as 50 years, during your Guilty Plea Hearing-.

A. -yes, sir-.

Q. -is that correct...... So, you knew that was a possibility?

A. Yeah, understanding ... I knew it was a possibility, but it was (unintelligible) to me, like going to trial or anything, you know, and, getting found guilty.

Q. I understood you to say that, in your words, "I was hoping to get less time by pleading Guilty, than by going to trial."

A. Yes, sir. Understanding that the maximum and the minimum ..... The maximum being 50 years, and the minimum being 20 years on the sentences; I understood, you know, and the mitigating, you know, the presumptive being 30. I understood all.... He explained all that to me, but, I didn't know.... I didn't, you know, think, you know, by throwing myself on the merey of the Court, I didn't really. ... I really didn't understand what I was really doing when I did it, so...." Record at 215-16.

Smith readily admitted that he had been accurately advised of the range of years of the sentence he might receive, and that he pled guilty in hopes that the trial court would sentence him more leniently after pleading guilty than would have been the case had he proceeded to trial and been found guilty. It is apparent, therefore, that Smith's complaint amounts to little more than dissatisfaction with the measure of "mercy" doled out by the trial court. Such is not valid basis upon which to set aside a guilty plea.

Smith has failed to prove by a preponderance of the evidence that he was incorrectly advised of the sentencing range at the time he entered his guilty plea. Therefore, the post-conviction court properly denied Smith's PCR petition. Cf. Smith v. State (1992), Ind.App., 596 N.E.2d 257 (post-conviction relief denied to defendant who failed to sustain his burden of proof that he correctly understood the sentence called for in the plea agreement).

Judgment affirmed.

KIRSCH, J., concurs. SULLIVAN, J., dissents with opinion.

1 . Ind.Code 35-43-2-1.

2 . Ind.Code 35-41-5-1 (Attempt) and Ind.Code 35-42-4-1 (Rape).